NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IN RE TERMINATION OF PARENTAL RIGHTS AS TO N.R. and N.R.

No. 1 CA-JV 23-0057 

Appeal from the Superior Court in Maricopa County

No. JS21058

The Honorable Genene Dyer, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Alongi Law Firm PLLC, Phoenix

By Thomas P. Alongi, Elisabeth Alongi

Counsel for Appellant

Czop Law Firm PLLC, Higley

By Steven Czop

Counsel for Appellee Alexandra D.

Maricopa County Legal Defender’s Office, Phoenix

By Jamie R. Heller

Counsel for Appellee Logan R.

FILED 10-24-2023
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in 

which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Kristina M. (“Grandmother”) appeals the juvenile court’s 

order denying her petition to terminate the parental rights of Alexandra D. 

(“Mother”) and Logan R. (“Father”) to their children. She contends, among 

other arguments, that the juvenile court erred in finding that Mother’s 

consent to place her children in a guardianship precluded a finding of 

abandonment and that she did not prove that Mother’s chronic substance 

abuse warranted termination of Mother’s rights. We vacate the court’s 

order and remand for further proceedings for two reasons. First, consent to 

a guardianship does not necessarily negate a finding of abandonment. 

Second, the court should not have considered the substance abuse ground 

because Grandmother never alleged that ground in her termination 

petition.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the 

juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).

Mother and Father are the biological parents of a boy born in 2018, and a 

girl born in 2019. Both parents have histories of substance abuse and 

domestic violence. Father has been incarcerated several times. He was last

incarcerated in July 2020 for driving under the influence and for armed 

robbery. His expected release date is October 2024. In April 2021, Mother 

moved to Florida for substance abuse treatment and left the children with 

Grandmother. She consented to placing the children in a guardianship with

Grandmother as their guardian. 

¶3 In May 2022, Grandmother petitioned to terminate both

Father’s and Mother’s parental rights to the children. As grounds for 

termination of Father’s parental rights, she alleged abandonment, neglect, 

and incarceration under A.R.S. § 8–533(B)(1), (2), and (4). As grounds for 

termination of Mother’s parental rights, she alleged abandonment and 

neglect under A.R.S. § 8–533(B)(1) and (2). To support her neglect 

allegation, Grandmother argued that Mother had neglected the children 
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

3

because Mother had abused substances, had been unsuccessful in 

rehabilitating, and was unable to discharge her parental responsibilities.

¶4 The juvenile court held a termination hearing. Mother failed 

to appear at the hearing. The expert who Grandmother had hired to 

conduct a home study testified that grounds existed to terminate Father’s

and Mother’s parental rights. He also testified that termination was in the 

children’s best interests because the parents were not involved with the 

children, the children were safe in Grandmother’s home, and they had 

permanency with Grandmother. Finally, he testified that Grandmother was 

willing and able to adopt the children and that adoption would be in the 

children’s best interests. He admitted that his home study rested only on an 

interview with Grandmother and online research about Father’s criminal 

history. He had not interviewed Father or Mother. 

¶5 Grandmother testified that Mother and Father had 

abandoned the children because, for more than six months, they had failed 

to maintain a normal parental relationship with the children. They did not 

send any letters, gifts, or cards to the children. She admitted, however, that 

the children had not been harmed while in Mother’s care. After Mother

returned from Florida in August 2022, she saw the children only four times, 

with the last contact being in December 2022. She also testified that the

termination of the parents’ parental rights was in the children’s best 

interests because the children would have a stable environment. When 

asked if she was concerned that Mother would withdraw her consent to the 

guardianship, Grandmother answered, “No.” Finally, she testified that 

Father had not indicated that he intended to terminate the guardianship.

¶6 Father testified that after his release from incarceration in 

April 2020, he communicated with Grandmother about once a week to 

discuss how the children were doing. He could not remember, however, if 

he had ever asked to see the children. His last contact with the children was 

in April 2020. While incarcerated, he received updates about the children

from Mother via phone calls until she stopped answering his calls. He also 

said that he has been participating in substance abuse and counseling, 

domestic violence, and anger management classes. Finally, he testified that 

he did not intend to terminate the guardianship.

¶7 During the closing argument, Grandmother argued that the 

court should terminate Mother’s parental rights on the abandonment and 

neglect grounds. As to Father, she argued that his parental rights should be 

terminated on the abandonment, neglect, and incarceration grounds. The 

juvenile court found that Grandmother had proved the incarceration and 
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

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substance abuse grounds to terminate Father’s parental rights, but not the 

abandonment ground. 

¶8 As to Mother, the court found that Grandmother had not

proved grounds for termination. It found that Grandmother did not prove 

abandonment because Mother had consented to the guardianship “to 

ensure that Grandmother [had] the legal authority [to] provide for [the 

children’s] medical, educational and financial needs.” It also found that 

Grandmother had not proved chronic substance abuse because 

Grandmother provided no evidence beyond her testimony about Mother’s 

chronic substance abuse. The court did not address that Grandmother had 

alleged neglect, not chronic substance abuse, as a ground for termination.

¶9 The court further found that Grandmother had not shown 

that termination of either parent’s parental rights would be in the children’s 

best interests. The court reasoned that the children “always had a safe and 

stable home that the parents agree[d] to through their consent to the 

guardianship” and that no evidence showed imminent disruption of the 

guardianship. It therefore denied Grandmother’s petition for termination. 

Grandmother timely appealed.

DISCUSSION

¶10 Grandmother challenges the juvenile court order to the extent

that it found that (1) she did not prove abandonment and chronic substance 

abuse as grounds to terminate Mother’s parental rights, and (2) termination 

of both parents’ parental rights was not in the children’s best interests. As 

to the abandonment ground, she contends that the juvenile court erred in 

finding that she did not prove abandonment as to Mother solely because

Mother had consented to the guardianship. A juvenile court’s termination 

determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child 

Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). We will uphold the court’s factual 

findings “if supported by adequate evidence in the record.” Christy C. v. 

Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 451–52 ¶ 19 (App. 2007) (quoting State 

v. Smith, 123 Ariz. 243, 247 (1979)). “The juvenile court’s legal conclusions 

regarding the statutory ground for termination [] will be affirmed unless 

they are clearly erroneous.” Brionna v. Dep’t of Child Safety, 533 P.3d 202, 

209–10 ¶ 31 (Ariz. 2023).

¶11 To terminate parental rights, the juvenile court must find by

clear and convincing evidence the existence of at least one statutory ground

under A.R.S. § 8–533, and by a preponderance of the evidence that 

termination would be in the child’s best interests. A.R.S. § 8–533(B); Jennifer
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

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S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016). One such 

ground is abandonment, A.R.S. § 8–533(B)(1), which is “the failure of a 

parent to provide reasonable support and to maintain regular contact with 

the child, including providing normal supervision.” A.R.S. § 8–531(1). A 

parent’s “[f]ailure to maintain a normal parental relationship with the child 

without just cause for a period of six months constitutes prima facie 

evidence of abandonment.” Id. 

¶12 In determining abandonment, the court must consider 

whether a parent has (1) provided reasonable support to the children, 

(2) maintained regular contact with them, and (3) provided normal 

supervision. Kenneth B. v. Tina B., 226 Ariz. 33, 37 ¶ 18 (App. 2010). A 

parent’s conduct determines abandonment, not a parent’s subjective intent. 

Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 18 (2000). “The 

burden to act as a parent rests with the parent, who should assert his legal 

rights at the first and every opportunity.” Id. at 251 ¶ 25 (citation omitted). 

When a parent cannot exercise traditional methods to bond with the 

children, “he must act persistently to establish the relationship however 

possible and must vigorously assert his legal rights to the extent necessary.” 

Id. at 250 ¶ 22 (quoting In re Pima Cnty. Juv. Sev. Action No. S–114487, 179 

Ariz. 86, 97 (1994)).

¶13 The court erred by concluding that Mother’s consent to the 

guardianship alone defeated Grandmother’s abandonment claim. A parent 

cannot avoid a finding of abandonment solely by placing children in a 

guardianship. See A.R.S. § 8–533(A)–(B)(1) (no express prohibition for legal 

guardians to petition for termination of parental rights). Although the 

existence of a guardianship is a relevant factor for the court to consider, it 

is not the only, nor even the most important, factor. See Timothy B. v. Dep’t 

of Child Safety, 252 Ariz. 470, 476–477 ¶¶ 25, 27 (2022). Instead, the court’s 

main focus in analyzing the abandonment ground should be on the parent 

and her efforts—or lack thereof—to provide reasonable support, regular 

contact, and normal supervision. See A.R.S. § 8–531(1) (Abandonment 

means “the failure of a parent to provide reasonable support and to 

maintain regular contact with the child, including providing normal 

supervision.” (Emphasis added)). The court here made no other findings.

¶14 Grandmother also argues that the juvenile court erred in 

finding that she had not proved the chronic substance abuse ground under

A.R.S. § 8–533(B)(3) to terminate Mother’s parental rights. But, as Mother 

points out, she never alleged chronic substance abuse as a separate ground 

for termination. Although Grandmother alleged that Mother had abused 

substances, had been unsuccessful in rehabilitating, and was unable to 
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

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discharge her parental responsibilities, Grandmother did so to support her 

neglect ground allegation. Thus, the only two grounds Grandmother 

alleged to terminate Mother’s parental rights were abandonment and 

neglect under A.R.S. § 8–533(B)(1) and (2). Grandmother never moved

before or at the termination hearing to amend her petition to allege the 

chronic substance abuse ground. In fact, during the closing argument, she

argued that the court should terminate Mother’s parental rights only on the 

abandonment and neglect grounds. Mother thus did not receive notice 

about the chronic substance abuse ground and was denied the opportunity 

to prepare a defense to this ground. See Roberto F. v. Ariz. Dep’t. of Econ. Sec., 

232 Ariz. 45, 55–56 ¶¶ 45–50 (App. 2013) (finding that the juvenile court 

erred in allowing amendment of the petition to terminate parental rights on 

the fourth day of trial). The juvenile court therefore erred in considering a 

ground not alleged in Grandmother’s petition. See id. at 55 ¶ 44 (“Adequate 

notice is a fundamental element of due process.”) In doing so, the court 

further erred in not resolving the neglect ground that Grandmother had 

alleged in her petition. 

¶15 We vacate the juvenile court’s order denying Grandmother’s 

petition to terminate Mother’s parent rights and remand to allow the 

juvenile court to reconsider its ruling on the petition under a correct 

understanding of the applicable law. Because we vacate the juvenile court’s 

order based on the court’s error in applying the law on the statutory 

grounds for termination of Mother’s parental rights, we need not—and

therefore do not—address whether the juvenile court erred in finding that 

termination of Mother’s parental rights was not in the children’s best 

interests.

¶16 Moreover, the juvenile court’s errors in analyzing whether

Mother’s parental rights should be terminated affected its analysis whether 

termination of Father’s parental rights was in the children’s best interests. 

Whether grounds exist to terminate Mother’s parental rights is a factor in 

determining the best interests analysis as to Father because the termination 

of Mother’s rights affects the children’s adoptability, a critical factor in 

determining best interests. See Demetrius L., 239 Ariz. at 3–4 ¶ 12 (explaining 

that in determining whether the child will benefit from termination, 

relevant factors include whether the current placement is meeting the 

child’s needs, an adoption plan is in place, and if the child is adoptable); see 

Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98 ¶ 10 (App. 2016) (noting 

that termination would make the children eligible for adoption, which 

shows that the children would benefit from the termination). We therefore 

also vacate the juvenile court’s best interests analysis as to the termination 

of Father’s parental rights and remand for further proceedings.
IN RE TERM OF PARENTAL RIGHTS AS TO N.R. and N.R.

Decision of the Court

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CONCLUSION

¶17 We vacate and remand.